Posted
by
Soulskill
on Monday May 09, 2011 @11:21PM
from the go-big-or-go-home dept.

wiedzmin writes "Subpoenas are expected to go out to ISPs this week in what could be the biggest BitTorrent downloading case in US history. At least 23,000 file sharers are being targeted by the US Copyright Group for downloading The Expendables. The Copyright Group appears to have adopted Righthaven's strategy in blanket-suing large numbers of defendants and offering an option to quickly settle online for a moderate payment. The IP addresses of defendants have allegedly been collected by paid snoops capturing lists of all peers who were downloading or seeding Sylvester Stallone's flick last year. I am curious to see how this will tie into the BitTorrent case ruling made earlier this month indicating that an IP address does not uniquely identify the person behind it."

Comcast and Time Warner are going to be busy. Just IDing and notifying the downloaders is going to be a pain in the ass, and God forbid the customer moved, switch, and/or can't be found. As a manager, I would file a motion to stop this just to keep my cost down. Furthermore, this is a witch hunt and the sitting Judge needs to step down for being incompetent. While I may not have a JD, any rational person can see that the company is just trying to start a legal phishing scheme.

What really irks me, is that they'll try to sue these people into paying rather than engaging them as customers. MPAA, here's an idea, instead of sending notices to ISPs about someone stealing a movie, how about you work with ISPs to send the downloader a link to pay for the movie instead. Give the option to rent or buy it, and play with the price until you find a sweet spot these el cheapo's are willing to fork over. Threatening them with lawsuits because it seems like a great way to set an example hasn't worked thus far, why keep beating this dead horse then?

A safe list of IPs wouldn't be practical. It'll be rather less hi-tech than that. When the subpoena results come back, someone is just going to be given the task of reading them all, running a quick google on each name, and striking off the list anyone they find who might pose a problem.

I can't wait till a few Governors, Congressmen, Senators, Justices get hit because their kids downloaded content.

There are about a thousand individuals in the US with enough political power to get the ball rolling for change in this matter. Of them, their demographics put them with an average age of upper 40's to lower 50's making well over a million each year. Among those who still have kids living at home, to most of them, their thousand dollar settlements is chump change.

Given a US Internet population of about 200 million, and the assumption that 50 thousand will face legal action of similar nature, statistically, there is not even a 1% chance that someone with political sway has dealt with this.

I think another thread really captured it though... any such case would get dropped, and I am sure that the AAs have their lawyers at least doing a cursory check to try and make sure that no such embarrassing/risky case gets filed in the first place.

Be a fun time making the original IP lists gathered disappear in discovery, should they be requested. You lose the 'Oh, we didn't realise...' argument used in personal jurisdiction disputes and whatnot if it's found you've been doing SOME kind of homework on the IP addresses gathered.

Somewhat related, is there any comparable tactic to Selective Prosecution that can be used in civil disputes?

Riight. 'Cause the junior lawyers they have going over the paperwork wouldn't spot a name that meant trouble in about 10 seconds flat. Lawyers are not stupid, and this will all be very carefully checked (and the bill for the time taken added to the "This is how much we're having to spend to fight piracy" total they use to scare Senators who don't understand basic statistics)

It's not unreasonable to expect that as bandwidth increases, caps increase too. I know that many ISPs aren't particularly reasonable, but they're going to be forced to be reasonable eventually, if they want customers. They may have a local monopoly, but if things were seriously that backward in my town that I couldn't even use the net properly, then I'd just move to a better area, or even a better country.

I'd expect it to be tossed. The US Copyright Group can't provide the torrent and then sue people for using a lawfully provided torrent. Unless of course the US Copyright Group didn't have the right to distribute those files, in which case they'd be liable for say, eleventy billion dollars.

If they put it there, then they are guilty of copyright violation: illegally distributing the work.

If they did not put it there, then they are still guilty of copyright violation, because in order to find out who is downloading a file, they have to have a copy of the file for comparison! This issue has been brought up before: they cannot use illegal means to pursue legal "solutions" to their piracy problem.

Remember that in the past, their means of detecting who was violating copyright (I won't say "pirating", because a pirate has to distribute, not just copy) was itself accused of being illegal. Frankly, I don't see how they could devise a legal means to do it.

Honestly, I think these cases are dead in the water. I don't think they'll go anywhere anymore. Too many judges have become aware of how this all works. Or doesn't work, as the case may be.

That still doesn't get around the issue that, technically, if it's the copyright owner who is offering you the movie for free they have the right to offer it to you for free and it's no longer a breach of copyright if you accept their offer. Either they don't have the right, in which case they're liable for the breach, or they do have the right, in which case there was no breach by anyone. I can't offer to give you my phone for free and then have you arrested for stealing my phone if you accept because I have the legal right to give it away.

TWC and Comcast are just conduit providers connecting their subscribers to the rest of the world. I'm sure they don't like having to rat out their own customers. But the law is the law, and subpoena's can't be ignored.

But, as TWC have already done once, they can prevent having an 'undue burden' being placed on their business operations, and stem the flow of responses to a reasonable level; after all, they have other requests from government agencies that take precedence. Finally, National Security is helping us!

While I may not have a JD, any rational person can see that the company is just trying to start a legal phishing scheme.

The **AAs know that the courts can't handle a flood of 23,000 cases.The **AAs know that the major ISPs can't handle a flood of ID requests.

I think that longterm, this is part of a **AA plan to change the way civil copyright cases are dealt with.They're going to engaging in mass lawsuits until Congress passes ACTA or some similar lawyer enabling regime.

The courts wouldn't see 23,000 cases. The usual procedure here is settlement. The copyright holder just has to make an offer that cannot be refused: Either settle for $7,000 or so, or go to court and face tens of thousands of dollars in legal fees even if you win.

As for the ISPs, I imagine the **IAs would love to see them inconvenienced even further by piracy. It means more of an incentive to put in place technological measures to stop piracy like blocking popular trackers, traffic shaping and tiny usage quotas.

The courts wouldn't see 23,000 cases. The usual procedure here is settlement. The copyright holder just has to make an offer that cannot be refused: Either settle for $7,000 or so, or go to court and face tens of thousands of dollars in legal fees even if you win.

You can actually file a motion to have the prosecution pay your legal fees if you win. You shouldn't have to look very far to find a lawyer who's willing to take on the case without charging you directly, considering some of the precedent that's be

As for the ISPs, I imagine the **IAs would love to see them inconvenienced even further by piracy. It means more of an incentive to put in place technological measures to stop piracy like blocking popular trackers, traffic shaping and tiny usage quotas.

Or an incentive to just stop caring and start ignoring the requests from media lawyers.

But what if they were all renters? We can assume not everyone watches the movie in the same night. Say 500 DVDs were purchased, at a rental-licensed rate of $35.00 (again, arbitrary number), and all the customers rented it over the next month and a half. 500 * $35.00 = $17,500. And then your number comes into play. Assuming $5/ea for video rentals, the rental companies took in $115,000, so after the cost of the DVDs, the rental companies made $97,500.

So exactly who lost out there? The MPAA, or the local rental stores? Well, the MPAA likely still made exactly what they would have before, as the stores still needed to stock their stores. If I was a rental store, and I lost $97,500 because of piracy, I may be a bit miffed.

But...

Not all of those 23,000 are going to buy it, nor rent it.

[cue soothing music]

[In a Mr. Rogers-like voice]

Long ago, it was a simpler time... People had just discovered the wonders of indoor plumbing, microwave ovens, color television, and then the home video cassette player. This was long before most of you were born. A video cassette, in simple terms, was a box roughly twice the size of a netbook, which could hold up to 90 minutes of low quality analog video with two channel sound. This wonderful innovation allowed you to view movies in the pleasure of your own home.

This was before "The Internet", Netflix, Redbox, Hulu, YouTube, or BitTorrent ever existed, so what was this simple culture to do? They would get into their cars, and drive to local video stores to rent movies... But they cost approximately $5/day to rent. Lets not forget that this was during the era of Reagan Economics, so that was roughly equal to the monthly income for a family of 4 hard working Americans. Not everyone could afford a video cassette player, nor the cost of the rental of the video cassettes. Friends and family would get together to watch movies on home video cassette players, and promptly rewind and return the video cassette to the rental establishment.

Then the evils of piracy was invented by evil one eyed people who lived on ships and sang drinking songs before looting and pillaging.

ok, I'm making myself nauseous with the sarcasm now, so I'll stop.

23,000 people downloading does not equal 23,000 purchases, nor 23,000 rentals.. Assuming all 23,000 people were interested in viewing the movie if there was a cost associated with it, they may watch in groups of 2 to 10 (we'll say 5 for comfortable seating). That's 4,600 rentals or purchases. And lets not forget that those who purchase are likely to lend out movies to friends, which would lower the number even more. Say 75% of the original set would be willing to spend a few bucks on a rental or borrow it from a friend. That brings the number down to 17,250 people intending to watch. At an average of 5 viewers a session, that lowers the number down to 3,450, which could still be comfortably managed by movie rentals rather than movie purchases, which means the original price paid to the studios for rental movies is still $17,500, which is pretty close to breaking even for the video stores. Luckily,

Moreover, I really wonder how things will pan out with people who downloaded but didn't seed. The wording of the court order seems to suggest that they're assuming all downloaders infringed on multiple copies, but most would only have viewed one. Even with punitive fines, there's no way the typically insane awards should hold up in court.

That's a useless distinction, legally. The way BitTorrent works, as soon as you finish downloading the first block you are sharing it out to someone else. Seeding only refers to when you have 100% of the file and you are sharing it. You can be sure if you have 99% of the file and are sharing it out nobody is going to make the legal distinction that you weren't "seeding" it.

IP != person in logic. An IP refers to an access point. It very well may be a personal access point, but since most private wireless networks can be broken into easily by any competent person with google, it stands to reason that assuming that IP = person is a logical fallacy. A "snapshot" of your IP address only proves that your access point was used to download copyrighted material. If there were a connection that you are, in fact, the only person to use this access point, then the conclusion may be m

If you are a parent, the chances are that the IP address is in your name, even if your children (including adult children) are the ones who use the internet the most. And in many cases, like mine for example, there are probably 20 households who have access to my open router. That's 20 households... houses and apartments... so say maybe 50 people.

In a great many cases, an IP address actually has only a very small chance of identifying an individual. Arguing that in other

What if all 23,000 file sharers each ponied up $50 dollars to make the problem go away? And by make the problem go away I mean hire some professional hit men to brutally kill a bunch of the lawyers who thought suing 23,000 people would be a good idea. I reckon that for 11.5 million dollars you could buy yourself a great big heap of dead lawyers.

Doesn't matter how obvious something is until either a law or a precedent says so. It's better that way. The problem is when aging judges who think televisions are the bees' knees fail to understand what we know to be obvious. See the WoW Glider case, and the ruling that copying a program from your harddrive to your RAM constitutes copyright infringement.

Most (all?) standard Internet connections today gives you one IP per household, and inside each a number of private IP's are issued to the devices that request an IP. They all share the public IP. Now, households with just one person exist of course but most have more than one person and usually also more than one device that's using the Internet connection. Seen from the outside is it completely impossible to determine who in the household m

Now, you cannot prosecute a household, only specific people. But you cannot determine from the outside who was behind any action on the Internet so you cannot put a name on the offense. You can also not knowingly accuse an innocent of something (one committed the offense, everybody else is innocent), nor can you say that the Internet connection was used with permission, thus putting a name on someone 'responsible', so in essence you cannot use any log just showing an IP as any kind of 'proof' of someone in particular committing something, as you need a specific person to prosecute.

Thankfully the court have ruled in favor of this obvious fact.

This "obvious fact" has been up in courts several times before, and they've gone the other way. I doubt this ruling will stand (and it's not binding on any other court anyway).

You bring an action against a "John Doe" - you don't need a specific name, nor are you prosecuting a household. Once you bring the action and have established a prima facie case that someone has committed copyright infringement via a particular modem, then you get subpoena power from the court and can get router logs, hard drive scan

Yes, exactly. The producers get to control how their movie is distributed. Torrents are not one of the distribution methods they chose, so any torrent is by definition a violation of their exclusive distribution rights.

An artist is not entitled to be paid by people who watch their movie or listen to their music. Now, I think they should be paid, and Richard Stallman came up with a way to do that which I think would be fair to everyone which involves a small tax on internet use with money being distributed to artists based on a cube root formula. Additionally users can press a button to give one or two dollars at a time based on their genuine desire to support artists, and not ou

I've said it before, and I'll say it again: All of these cases are based on the work of unlicensed private investigators, working behind closed doors, doing who-knows-what. There is absolutely no proof that ANY of their "evidence" is real. These "investigators" and their shyster lawyer accomplices are the real criminals. They are the ones who should be fined and imprisoned. And given a good flogging.

Nobody really mentions this, but if ever I download something whether legitimate or not, I rarely if ever see my seed ratio exceed 10:1. So even if I let 10 people fully download a movie from me, the real loss of distribution is only $200 assuming the inflated $20 a box office ticket. Even if we take a potential loss of 100:1, that's still only $2000 and I highly doubt anyone ever really seeds to this amount. Even a $2,000 fine is incentive enough to get someone to stop torrenting copyrighted works and d

Take it one step further. With Bittorrent you're rarely in a position to transfer the entire file to one person, especially on popular torrents like newly released movies. What you're really doing is uploading small chunks of the film to different people, something that everyone here has no trouble understanding but seems to be a hopelessly complicated concept for much of the older generation.

Now the question is, what does copyright apply to? The entire film or all the little bits that make up the film? I don't think any sane person could claim it's the latter, because practically that would make every sequence of bits someone's intellectual property. Even if we couple that idea with a context how do we legally define the context? The name of the file those bits are a part of? And what happens if I encrypt or compress those bits? What if I mix them with bits from other sources? There's just no way to make this definition work. So if I'm not distributing the film in its entirety, if I'm not even distributing large parts of it to the same people, then I think you could argue that distributing it over Bittorrent doesn't violate any IP laws.

Lets say I have a counterfeit bag, some expensive designer one. If I sell that bag to someone, or even give it to someone, I've distributed counterfeit goods. But if I cut that bag up into hundreds of little pieces of fabric, then distribute those pieces to hundreds of different people, have I broken a law? What if I do this 10 times with 10 bags, over thousands of people, have I distributed 10 bags to people? I don't think so. Even if you could reassemble those pieces into an original bag I still haven't given a bag to any one person.

Even the law itself [copyright.gov] defines infringement to be "any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement". How can anyone claim a small segment of the billions of bits that make up a movie embodies it? Without the rest of it, they're nothing. Even if you argue that a person could extract a single frame from them, then a simple encryption pass would turn them into truly random noise. At least, until you have the whole file to decrypt.

It still identifies the account holders with the ISP, who can, quite reasonably, be held accountable for damages caused through their accounts, unless any of the subscribers can provide further assistance to identify the actual parties who should be sued, I can see no reason why they should not have to pay damages here.

Maybe when people realize they can be civilly liable for damages if they don't properly secure their network access, people will actually start practicing respectable security policies at

Note that at no time in my prior post did I suggest that the holder of the account should be held criminally responsible for the actions of the downloader, only that they could reasonably be held accountable for civil damages.

Its funny how people keep making analogies to things being stolen as a counterpoint to my statement when the general concensus seems to be on slashdot that copyright infringement is not theft.

It's a lot more like if your kid breaks something in a store and you have to pay for it. If you don't want to be accountable for what your kid breaks, don't bring him into the store. If you don't want to be accountable for what people you don't know do with your internet connection, then don't let them use it. S

Except for the fact that there isn't currently a completely impervious method to secure a wireless network, even with 'respectable' best practices on your home network, you're still at risk for your connection being hijacked and used for nefarious purposes.

All in all, the analogies presented aren't unreasonable; if someone exceeds a known boundary (walking into a house whose door happens to be unlocked; opening the door of and operating a car that they don't own--things known to be crimes), that liability

I am not one to condone copyright theft however if I leave my front door open it does not make me a criminal. The person that enters that door locked or not however is very much a criminal.

Actually, if you leave your front door open, and leave a gun on your coffee table, and someone comes into your home, takes the gun and uses it to commit a crime, you could be liable for civil damages. The doctrine is known as "attractive nuisance". I imagine similar reasoning might apply to deliberately unsecured WiFi connections.

Cursory search points me to Wikipedia. The summation at the top pretty much covers how this instance would NOT apply:

In the law of torts, the attractive nuisance doctrine states that landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition. The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. However, it can be applied to virtually anything on the property of the landowner.

The last sentence notwithstanding, all tests against this doctrine are with regards to child trespassers.

If a child walked into a house with a loaded gun on the coffee table and popped his pal who happened to be with him, this holds merit; an adult walks in, however, grabs the gun, and goes house-to-house offing neighbours, this is completely off the table.

unless any of the subscribers can provide further assistance to identify the actual parties who should be sued, I can see no reason why they should not have to pay damages here.

That's just another form of being guilty until proven innocent. Just because you can't prove somebody else did it doesn't make you guilty... it's the plaintiff's responsibility to prove to some standard that you did it.

Ironically DMCA protects you as an account holder from liability for people that use the Internet Service you Provide. Basically all you need is to inform your users they they'll get the boot if they are repeat infringers and "reasonably implement" that policy. Then the most the RIAA/MPAA

A better comparison is being financially responsible for the actions of people that an argument exists you could reasonably be held accountable for.... for example, the actions of your child... the gas that somebody else uses driving your car, etc...

To download the torrent now, then show up in court with the copy I bought like 3 months ago. Actually won't be a bad idea to try and push the trademark, pirating, owning, multiple copy, whatever else ideas they try into court. Probably too expensive though, since it wouldn't fall under "frivolous" or "malicious," and wouldn't be able to recoup lawyer costs.

What happened to Copyright being between the artist/developer and the customer. How is it right to have these a "Copyright group"?
If someone has breached copyright on a particular product, it should be up to the original developer of that product to sue them.

"What happened to Copyright being between the artist/developer and the customer. How is it right to have these a "Copyright group"? If someone has breached copyright on a particular product, it should be up to the original developer of that product to sue them."

This is a very good point; one I wanted to make myself. The recent Righthaven case made it clear that the parties who sue must have sufficient rights to do so. They may not just be some group of thug-lawyers who were hired to pursue the case. Righthaven did not actually own any copyrights, so the judge told them they had no standing to sue. Period.

I am curious to
see how this will tie into the BitTorrent case ruling made earlier this month
indicating that an IP address does not uniquely identify the person behind it."

Easy! From now on, only IP addresses can be sued for infringement. If one of them loses, it goes straight back into the ICANN IPv4 pool. That way, not only do the lawyers get to sue a number of IP, but the movie pirates get to save the internet without all this complicated IPv6 nonsense!

BitTorrent should support a "random assist" mode. Clients (even if idle) announce they want to assist. The tracker selects an active torrent randomly or based on need and returns a peer list.

The client doesn't have the.torrent, so it doesn't know what the files or piece hashes are. It simply requests peers give it random pieces, then shares the pieces it receives with anyone that needs them.

After a random amount of time the client leaves the swarm, and securely deletes the torrent and any data from it.

The reasoning behind this is that you cannot determine if anyone on an infringing torrent had any intent to infringe. It could just be their client assisting the swarm. Even if the peer downloaded every piece of the torrent, it could be their client randomly decided to assist for a long time.

A beneficial side effect of this is that all swarms will get more peers.

Rent movies cheaply (ie Redbox for $1), Rip to HDD, return movie, then encode to DivX or other bitrate-efficient codec. Only costs $1 per movie, and is 100% offline and thus untraceable.

As much as I hate these lawsuits, I really don't feel sorry for the people getting sued. There are plenty of ways to get movies really cheap, or even free, without getting sued. And seriously, are you really that desperate for "entertainment" (and I use that term VERY loosely) that you're downloading some shitty Sylverster Stallone movie? WTF?

Then again, since I gave my real email address, when I was renting frequently, I would get vouchers by email for free movies on a fairly regular basis, and they'd be given with food purchases at grocery stores that had a Redbox outside. So the total cost isn't necessarily even as high as $1/movie, unless you account for the storage space, power required to run your computer, and any blank DVDs you burn them to.:)

Convenience. Piracy isn't just about saving money, though that is part of it. It's also the ability to watch whatever you want, when you want. Even if it's not been released yet in your country, or very old and obscure. All without needing to leave the house or wait more than a couple of hours.

Indeed, there are ways in which the US has been embarrassing itself lately, what with the TSA groping and warrantless wiretapping, but torrenting movies isn't a right, let's keep in mind the real freedoms that we've lost.

That's not to say that I think this sort of abuse of power is right, because it's clearly not, but even the worst consequences of it aren't as bad as some of the other things happening in even the other developed nations.

The issue is that if any of those 23,000 people didn't do it, then we've chucked our values down the toilet to bend over for corporate greed. If they've got the goods fine, but they should have to go through the process of filing separate suits for each and every one of those people, unless they can demonstrate that the IPs belong to the same person or they're acting together.

Filing suit is their right, but it isn't their right to do it in such an economical way, make them pay for all the suits necessary and see if they still feel that this is a valuable use of the court's time.

What's more, I doubt very much that all those addresses really correspond to people for which that one court has jurisdiction.

Unless you were distributing a copyrighted work without permission for profit, copyright violation is NOT "stealing". There is a very big difference ethically, which is recognized (as it should be) by the law. Stealing is a crime. Copyright violation is a civil matter.

I think they'll likely argue that torrenting involves uploading as well as downloading. I'm sure though that they don't have any evidence that any of those people also uploaded to a party not authorized to receive a copy. I'd expect this to get shot down on the grounds of it being a rehash of the discarded making available theory.

This is a question that comes to mind to me frequently. If you share, say, 20 blocks of a video file whose torrent is 1070 blocks, and none of the blocks you share contain any information that would directly allow the recipient's software to do anything with it, have you done anything more than shuffle a bunch of 1s and 0s around? If those 20 blocks are contiguous, might you have a fair use defence? Hell, if your ratio on the torrent is less than 1.0, did you really share a copy?

I think they'll likely argue that torrenting involves uploading as well as downloading.

That's the general gist of it, but I've never met a torrent client that won't let me disable uploading. And how do you prove uploading is occurring? Easiest way is to download from an alleged seeder. Then it goes downhill really fast for them; they might have to defend that they weren't uploading themselves at the same time as they were downloading. Even then, they're only downloading from (and seeding to) an IP address, and there is the central controversy--with just an IP address, how do you know who